Monday, April 27, 2020
Majority Points to Mother’s Mental Illness, Drug Problem; Dissent Says Problems Had Been Alleviated;
Concurring Opinion Accuses Dissenter of Substituting His View of Evidence for That of Trial Judge
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal on Friday affirmed—over a dissent—an order removing three children from their parents’ home based on the mother’s drug addiction and mental illness, along with the filthy state of the premises which had floors covered with dog feces and urine, and marijuana within the reach of the minors.
Social workers on Feb. 25, 2019 encountered those problems along with dirty clothing, food in cabinets with mold on it, and stale food in the refrigerator. There was no formula for an infant.
The mother, who in 2015 had struck a police officer, was off her psychotropic medication and was thought to be suicidal. The father was on military duty in Syria.
Similar conditions were detected by child protective workers in North Carolina who monitored the family from 2013 until it moved to Twentynine Palms after the father was transferred there in 2017.
“In this case, we find that substantial evidence supports the trial court’s removal order,” Justice Douglas P. Miller said in the majority opinion. That opinion was joined in by Presiding Justice Manuel A. Ramirez.
It affirms orders and findings by San Bernardino Superior Court Judge Annemarie G. Pace.
Justice Frank J. Menetrez dissented, insisting that “[t]he juvenile court did an injustice to this family by removing these children from parental custody,” and Ramirez penned a concurring opinion critiquing the dissent, asserting that “the views of the dissent are based on a misunderstanding of the record facts of this case and the need to respect the appellate process.”
Menetrez took the position that when social workers from the San Bernardino County Children and Family Services (“CFS”) viewed the premises, there were problems, but each of them had been remedied by the time of the jurisdictional and dispositional hearings. He said:
“Mother was back on her medications and felt better. Father was home. The paternal grandmother was also staying with the family and stated that she would remain ‘as long as she is needed for support,’ though she and the parents acknowledged that she could not stay ‘forever.’ The home was clean, met community standards, and was stocked with appropriate food, including for the baby. The family no longer had any pets (who were the sources of the urine and feces on the floors), having gotten rid of them the day the children were detained. The social worker testified that the parents requested parenting classes and counseling and, as of the date of the jurisdiction and disposition hearings, had ‘been cooperative.’ ”
No Substantial Danger
Menetrez, a former Los Angeles Superior Court judge who was appointed to the Riverside-based Court of Appeal division in October 2018, asked rhetorically:
“What substantial danger to the children would mother’s mere presence in the home create?”
He answered: “None.”
The jurist elaborated:
“This is not a case in which a parent was physically, sexually, or emotionally abusing the children, which might put the children at risk of harm any time they were left alone in the parent’s care. Rather, the risks here related entirely to the deterioration of the home environment as a result of mother’s apparent decompensation when off her psychotropic medications. There is no evidence that those risks were likely to recur overnight and without warning.”
“Father and paternal grandmother were in the home, and the entire family was under the watchful eyes of the court and CFS. If the situation began to deteriorate, CFS could help the parents take steps to stop the decline and keep the children safe. And if such steps proved ineffective, CFS could file a supplemental petition. But the record contains no evidence of a substantial danger to the children at the time of disposition if returned to the physical custody of both parents.”
He said CFS had conceded that the father posed no risk to the children, noting it offered to recommend their return home if the mother were expelled from the home—an alternative the parents rejected.
The presiding justice maintained in his concurring opinion:
“When this case is viewed from the appropriate appellate perspective, in conformity with the appropriate standards of review, the conclusion drawn by the majority on this record, the law, and our appellate role, affirmance is the only just conclusion.”
He cautioned that “[i]t is a fundamental tenet of appellate review that we are not authorized to substitute our judgment for that of the trial court” and accused Menetrez of embarking “on a path towards the substitution his own judgment for that of the of the trial court.”
Ramirez contended that his colleague’s view that there is no evidence that mother’s presence in the home would imperil the children “is contrary to the record evidence showing mother had a long history of mental illness, and that the family experienced repeated interventions based on the same or similar child welfare concerns.” He maintained:
“Only by ignoring the family history and the record on appeal, as well as the limitations on our role on appeal, can a contrary assertion be made.”
“In our colleague’s dissent, he arrives at the conclusion that return of the children was compelled because the situation had been ameliorated prior to the disposition hearing…, but this conclusion also ignores the evidence: that it was the grandmother who cleaned up the house after CFS intervened, and, in each of the prior child welfare interventions, a very similar pattern was followed by mother, only to end up with mother ‘backsliding’ again. To urge return of the children to the parental home because ‘there is no evidence that those risks were likely to recur overnight and without warning,’…is unsupported by the record, while simultaneously ignoring the governing standards of review.”
Reply to Ramirez
In his dissent, Menetrez remarked:
“I do not believe that the concurring opinion contains either meaningful criticism of this dissent or meaningful support for the majority opinion. It does, however, contain a significant legal error.”
That error, he specified, is the statement that jurisdictional findings “are prima facie evidence that the child cannot safely remain in the home.” Menetrez declared that proposition to be “incorrect as a matter of law.”
He related that he has located “nine published cases, including one cited by the concurrence, that make the same mistake as the concurrence by asserting that jurisdictional findings are, in general, prima facie evidence that the children cannot safely remain in the home,” and scoffed:
“Not one of those cases contains any discussion or analysis in support of that proposition.”
The case is In re G.C., E072514.
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